Gurrea v Eborda [2024] SBHC 10; HCSI-CC 593 of 2020 (21 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gurrea v Eborda
Citation:
Date of decision:	21 February 2024 (In Chambers)
Parties:	William Gurrea, Nitarlyn Gurrea v Edward Eborda, Stephanie Eborda
Date of hearing:	19 February 2024
Court file number(s):	593 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:	That is, this entire proceeding is now being struck out. Parties to bear own costs. Counsel for the First and Second Defendants to provide draft orders for Court’s perfection.
Representation:	No Appearance for the First and Second Claimants Mr s Kwaiga for the first and Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r1.3, r1.8
Cases cited:	Kuriti v Dovele Landowners Board of Trustees [2014] SBHC 95

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 593 of 2020

BETWEEN

WILLIAM GURREA
First Claimant

AND:

NITARLYN GURREA
(Representing Lagoon Bakery)
Second Claimant

AND:

EDWARD EBORDA
First Defendant

AND:

STEPHANIE EBORDA
Second Defendant

Date of Hearing: 19 February 2024
Date of Ruling: 21 February 2024 (In Chambers)

No Appearance for the First and Second Claimant
Mr S Kwaiga for the First and Second Defendant

RULING ON UNLESS ORDER

1. Upon filing of the claim, at least two Directions have been issued to progress the case to trial. One on 25^th April 2023 and the other on 14^th December 2023. Those Directions were, amongst others, for filing of evidence for the trial, filing of Index to Court, Court Books, Agreed Facts and Issues, and Notice to cross examine witnesses. Those Directions have not been complied with.
2. It has come to the Court’s attention that counsel Toifai for the Claimants on few occasions has not been attending to Court. For example, on 7^th December 2023 and 12^th February 2024 during call overs, he failed to appear in the Court. The call over on the 12^th February 2024 supposed to be for confirmation of the trial that was listed and should commence on 20^th February 2024 at 1:30pm.
3. On the 12^th February 2024 at 1:30pm when counsel Toifai failed to appear, I issued an Unless Order (“Order”) in the following terms:
   • “1. Unless the Claimant’s counsel is present in Court at the next mention date of this matter on 19^th February 2024, the proceeding shall be struck out for want of prosecution.
   • 2. Cost in the cause.”
4. The Unless Order (“order”) was served at Eddie Toifai Law Practice pigeon hole at the High Court Registry on 14^th February at 11:00am. This complies with rule 17. 13 that requires the order to be served within 7 days of the date of the order if no time is specified by the Court. A sworn statement of proof of service of Alfred Tahamae filed on 20^th February 2024 evidences the service of the order.
5. The order was issued in order to progress the matter forward with minimal delay as required by rules 1.3 and 1.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007. That is, the need for the parties to progress the matter by minimising or avoiding undue delays that would hamper swift progression of the matter to finality. Despite the service of the order, Toifai did not comply with the order by failing to attend to Court on the 19^th February 2024. He did not take any step to advise the Court (either verbally or written) of his nonattendance. This is contemptuous and a dereliction of counsel’s duty to the Court.
6. Now, should the order, which is a self-executing order, be enforced? Rule 23.4^[1] provides that where a party to a proceeding has deliberately or sustainedly failed to comply with an order made in the proceeding, the Court can exercise its power to either strike out the pleadings of the non-complying party, or extend the time for complying with the order, or give further directions, or make another order.
7. The power provided for under this Rule includes the power to make self-executing orders referred to an “Unless Order” in the event of non-compliance within a specified time (see: Kuriti v Dovele Landowners Board of Trustees^[2]). In this case, I do not have any evidence from the Claimants’ counsel regarding explanation about his nonattendance in Court when the matter was called on the 19^th February 2024. As the Claimants’ counsel, he is required to progress the matter with minimal delay. If there is any inconvenience to the order, the Claimants’ counsel should properly inform the Court so that it can be varied or adjusted to suit the explanation. If counsel fails to comply with the order, he does so at his own peril. Court order is an order of the Court that needs to be complied and adhered to. This is part of the due diligence exercise expected on the part of the Claimants as the party that initiated this proceeding.
8. Since the order was served on counsel Toifai to attend to the Court as ordered, there was no appearance at all from him. This, in legal practice, is contemptuous and contumelious to the management and timely disposal of civil cases. Since this is a self-executing order, the noncompliance of it must be enforced accordingly. That is, this entire proceeding is now being struck out. Parties to bear own costs. Counsel for the First and Second Defendants to provide draft orders for Court’s perfection.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] [2014] SBHC 95.